IN THE HIGH COURT OF LAGOS STATE

ON WEDNESDAY, THE 25TH DAY OF NOVEMBER 1970

LD/198/70

BETWEEN

1. AKINYEMI ADESANYA

2. OLATUNJI ALLI ................................................. PLAINTIFFS

AND

1. SUNBO OLATUNJI

2. BANDELE OLATUNJI .................................................. DEFENDANTS

BEFORE: Kazeem, J.

Kazeem, J.:-The plaintiffs' claim is contained in what is entitled, "particulars of claim" as follows:-

"The plaintiffs claim to be the executors named in the last Will (dated the 2nd day of January, 1969) of late Joseph Olatunji Kongo, alias Ola Ttunji Kongo who died on the 9th day of October, 1969, in Dahomey and was later buried at Lagos within the Jurisdiction of the High Court of Lagos State and to have the said Will established and probate declared of the said Will in solemn form.

This writ is issued against the defendants because the defendants have entered a caveat and have refused to withdraw same despite the warning filed by the plaintiffs."

The averments in the Statement of Claim are not much different from those in the particulars of Claim, except paragraph 6 thereof which avers as follows:-

"Despite the warning filed by the plaintiffs, the defendants still refused to withdraw their caveat and even went further to file an affidavit of interest in which they made serious allegations in paragraphs 3, 4, and 5, of the said affidavit of interest, a copy of which is hereby attached."

Paragraphs 3, 4 and 5 of the affidavit of interest referred to above state as follows:-

3.      That the said Joseph Olatunji during his lifetime did not tell us that he made any Will nor do we believe to the best of our information and knowledge that he made any.

4.      That we are severally familiar with the hand writing of the said Joseph Olatunji.

5.      That we have seen the copy of the document alleged to be the last Will and Testament of the said Joseph Olatunji and are satisfied that the signature thereon is not that of the said Joseph Olatunji."

Paragraph 2 of the Statement of Defence which is the only defence put forward by the defendants avers as follows:-

"The defendants aver that the deceased Joseph Olatunji did not make or execute the alleged Will."

This averment in effect repeats the facts deposed to in the aforementioned affidavit of interest of the defendants.

At the trial, only the 1st plaintiff who is one of the Executors named in the Will appeared before me and testified and the 1st defendant also appeared alone and testified, the 2nd defendant having died before the trial.

In the matter of this nature the law and procedure have been succinctly stated in Tyrell v. Painton (1894) Probate 151 where Lindley, L.J., said at page 156 as follows:-

"In Barry v. Butlin 2 Moo. P.C.480 Parke, B., delivering the opinion of the Judicial Committee, said: "The rules of law according to which cases of this nature are to be decided are two; The first, that the onus probandi lies in every case upon the party propounding a Will, and he must satisfy the conscience of the court that the instrument so propounded is the last Will of a free and capable testator. The second is, that if a party writes or prepares a Will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court; and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true Will of the deceased." The same principle was laid down and acted upon in Fulton v. Andrew L.R. 7H. L448 and Brown v. Fisher 63 L.T.465. None of these cases turned on the plea of fraud...

The rule in Barry v. Butlin, Fulton v. Andrew and Brown v. Fisher is not in my opinion, confined to the single case in which a will is prepared by or on the instructions of the person taking large benefits under it, but extends to all cases in which circumstances exist, which excite the suspicion of the court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the Will.

(The italics is mine)

Also see Befunke Johnson & ors. v. A. Maja & ors. 13 WACA 290.

The only evidence as regards the alleged execution of the Will is that of Olugbade Johnson (PW2), a clerk in the office of the Solicitor who prepared the Will, and he testified that Mr Olatunji Kongo (herein-after called "the deceased") came to their office first on the 30th of December, 1968, at about 5 pm. and he then instructed his boss as to the preparation of his Will and that he spent about two hours in doing so. He testified further that thereafter he was asked to go and type out the draft which he did and he then produced the Will and its counterpart which were tendered as exhibits A and A1. He said further that the deceased later left their office between 7 pm. and 7.30 pm. together with exhibits A and A1 and the draft Will.

This witness further testified that the deceased came again to their office on the 2nd January, 1969, with another person who was waiting for him outside their office in a taxi. He said that he was then instructed by his boss to follow the deceased who took them to the Bristol Hotel and when they got there the three of them sat down in the lounge of the Hotel, downstairs and it was then that the deceased took out his Will from the pocket of his big gown and he told them to witness it. He said that he saw the deceased sign his name as "Olatunji Kongo" and he then covered the content of the Will before he asked both of them to sign as witnesses. He gave the name of the other attesting witness as Paul Peters and he identified Exhibits A and A1, as the Will of the deceased which he and Paul Peters witnessed on that day.

Under cross-examination of this witness the following emerged:-

(a)     Reference was made to the 30th December, 1968, as being the day of following the date the witness was employed by his boss. That will then put the date of his employment to 29th December, 1968, which happened to be a Sunday. It seems strange that the witness could have been employed on a Sunday.

(b)     This witness's description of that part of Bristol Hotel where the deceased and the attesting witnesses sat to execute the Will would appear to be at the lobby of the hotel and it is common knowledge that drinks and food are never served in a hotel lobby, let alone at the Bristol Hotel lobby for that matter.

(c)     This witness said that the deceased came to their office at 5 pm. on the 30th December, 1968, and spent about two hours in instructing his Solicitor concerning the content of his Will and thereafter the draft was prepared for him to type. He said that he typed the draft and produced exhibits A and A1 which the testator went through before he left with them together with the draft at between 7 pm. and 7.30 pm. Although I was not told how long it took the witness to prepare exhibit A and A1, it seems evident from the nature of the documents that they could not have been prepared within 30 minutes because according to the witness the deceased spent only about 2½ hours in their office on that day.

(d)     This witness said that when he and the other attesting witness-Paul Peters-were asked by the deceased to witness his Will, the deceased covered up the content of the Will with a copy of the Daily Times which he was holding, and when the witness was asked to demonstrate how that was done it happened that what the deceased would have covered up was the signature of the other attesting witness and not the contents of the Will.

(e)     Although this witness denied having written out the names of the other attesting witness on exhibits A and A1 before he signed, I am satisfied after comparing his writing on exhibit B with the words, "Paul Folorunso Peters" on exhibits A and A1 that he wrote those words on exhibits A and A1. If he did, why then did he deny having done so if he was not trying to hide something.

Having regard to the evidence of this witness and his demeanour I am satisfied that he was not telling the truth when he said that it was the deceased-Olatunji Kongo-who executed exhibits A and A1.

The other witness who testified for the plaintiffs was the 1st plaintiff, Akinyemi Akinsanya and he said that the Will was discovered in the deceased's wardrobe by one of his sisters who went with the other members of the family to the deceased's house after his death. He also testified as to how the Will (See exhibits A and A1) was read and how after he had instructed his Solicitor to apply for Probate, the defendants filed a caveat.

Under cross-examination this witness denied having any knowledge of the content of the Will before it was read; but it transpired from the evidence adduced by the defendant that this witness's mother lived with the deceased during his lifetime and that he too paid regular visits to the deceased's house. It was also disclosed that this witness and the deceased's junior wife named Dorcas took the deceased to Cotonou in Dahomey for medical treatment prior to his death; and that when the witness and the deceased's junior sister-Adetowun Ohiari (DW1) were going to Cotonou to bring back the deceased's corpse, the witness told Dorcas who was then with them and crying not to worry because he (the witness) had made adequate provisions for her and himself in the deceased's Will.

It is also clear from the content of exhibits A and A1 that this witness was to receive a devise of a house at 31 Bale Street, Falomo, which contains 17 rooms and that he was also to receive a legacy of £300. It also happened that the deceased's car No. LC 9728 which was directed in the Will to be sold, had before the deceased's death been "sold" to this witness and the purported sale was witnessed by Dorcas; See exhibits G.H. and H1. Dorcas also received benefits under the Will. There is no doubt whatsoever that this witness and Dorcas are to receive substantial benefits under the Will.

An attempt was also made to establish that it was the deceased who signed the Will (exhibits A and A1) as well as some other documents (exhibits G.H. and H1) and it was submitted on behalf of the plaintiff that the signatures of the deceased on both sets of documents are identical.

It is not disputed that the deceased in his lifetime sometime signed his name as "Joseph Olatunji" (See exhibits F and J1 to 3) and as "JOSEPH Olatunji Kongo". (See exhibit J), but apart from those documents tendered by the plaintiffs there is no other evidence before me that the deceased used to sign his name as "Olatunji Kongo" in his lifetime. Therefore, much as the signatures of the deceased on the documents tendered by the plaintiffs seem to look alike, I find it difficult to say that they are similar to those in the documents tendered by the defendants.

Although the 1st defendant adduced evidence to disprove that it was her father who executed exhibits A and A1, I am of the opinion that the circumstances of this case have aroused my suspicion so much that the evidence adduced to propound the Will has to be carefully examined.

As I have already said, it is the 1st plaintiff who is the only Executor seeking to propound the Will and if it is propounded it is he who will take substantial benefit under it. Moreover, the only evidence as to the due execution of the Will by the deceased had been disbelieved. I am, therefore, not satisfied that the plaintiffs have discharged the onus cast on them by the law to satisfy the court that the deceased not only approved the contents of the Will, but that he also executed it. In so far as they have failed to do so, the onus cannot, therefore, shift on the defendants to disprove that the Will is not that of the deceased.

In the circumstances, the plaintiff's claim fails and it is hereby dismissed.

Costs which is assessed at Twenty Five guineas to be paid out of the Estate.

Plaintiff's claim dismissed.